Explorer answers paddling lawsuitPosted on January 17th, 2011 2 comments Add a comment >>
The Adirondack Explorer has filed an answer to the lawsuit accusing me of trespass for paddling through private property on my way to Lake Lila in May 2009.
Essentially, we argue that the waterways in question—Mud Pond, Mud Pond Outlet, and a stretch of Shingle Shanty Brook—are open to the public under the state’s common law.
The common law, inherited from old England, allows the public to travel any inland waterway deemed “navigable in fact.”
But what makes a waterway navigable in fact?
The complainants—the Friends of Thayer Lake and the Brandreth Park Association—contend that the common law applies only to waterways that have a history of commercial use. In the Adirondacks, this usually means log drives.
Our contention is that recreational travel is sufficient to make a waterway navigable in fact (assuming other criteria, such as legal access, are met).
The state Department of Environmental Conservation agrees with us and has told the landowners, in writing, that the waterways in dispute are open to the public. You can read DEC’s letter by clicking this link (PDF): DEC letter.
We have raised several other issues in our defense. You can read the landowners’ complaint and our answer by clicking the links below.
The Explorer has hired Glens Falls attorney John Caffry, an expert in navigation-rights law, to represent us. John is a great guy, but he does need to be paid. Because the Explorer is a nonprofit publication, we don’t have a lot of cash lying around, so we have set up a legal defense fund to help pay our legal bills.
This is an important case that likely will define navigation rights throughout the Adirondacks and the rest of the state. If you care about paddlers’ rights, please consider donating to the cause. Click here to find out how.
This case could become the landmark in the long-running argument over what the term “navigable” means for Adirondack waters. So congratulations, Phil, on calling the question.
Even if the court agrees with the plaintiffs’ interpretation that waters must have been commercially navigable, a very good case can be made that recreational use is commercial use in the Adirondacks, both historically and currently. Tourism, from the time of the sports and their guides until today, has supported the region’s economy. Recreational use of waterways, then, by definition is commerce.
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